Federal appeals court upholds qualified immunity
for police officer who broke motorist's arm in the process of arresting
her for intoxicated driving. While trial judge erroneously submitted the
qualified immunity issue to the jury, the motorist failed to object or
submit alternative instructions, and the submission was not the kind of
"plain error" that threatened the fairness or integrity or public
reputation of the judicial process.

A motorist "readily
admitted" to a police officer who had stopped her that she was intoxicated
and he attempted to place her under arrest. The apprehension ultimately
resulted in a deep laceration in the motorist's forehead and a broken right
arm. The motorist claimed that she had been cooperative and immediately
put her arms behind her back in preparation for being handcuffed and arrested,
and that she did not struggle until after the officer broke her arm--at
which point she admitted that she resisted the attempts to handcuff her
because she was in extraordinary pain.

The officer contended,
however, that the motorist was uncooperative and swung at him after he
handcuffed her right wrist, and that he did not execute the "straight
arm bar takedown" that broke her arm until she became confrontational.

The motorist sued
the officer claiming that he used excessive force against her in violation
of her civil rights. A jury found that the force used by the officer was
excessive, but that his conduct was not objectively unreasonable in light
of clearly established law. The trial court therefore entered judgment
in favor of the officer on the basis of qualified immunity.

A federal appeals
court stated its belief that the trial court improperly submitted the legal
question of qualified immunity to the jury, reasoning that the judge should
have decided that issue as a matter of law, but affirmed the result because
the plaintiff did not object to the trial judge's submission. It also found
that this error was not "sufficiently fundamental to threaten the
fairness or integrity or public reputation of the judicial proceeding."

The motorist was
convicted in state court of resisting arrest, but evidence of this was
initially excluded in the federal trial court. During cross-examination
in the federal civil rights proceeding, however, the motorist volunteered
that she resisted arrest after the officer injured her arm, and she then
stipulated to the admission of her state court conviction.

The jury answered
"yes" to the question whether the officer reasonably believed
that his conduct was objectively reasonable in light of the clearly established
legal rules at the time, after answering "yes" to a first interrogatory
concerning whether the officer used excessive force.

While the appeals
court acknowledged that the law in the 8th Circuit, where the case arose,
was that qualified immunity is a question of law for the judge to determine,
it also noted that the issue of qualified immunity is frequently "intertwined
with unresolved factual questions." In such cases, as in this one,
the trial court can tailor special interrogatories to the jury specific
to the facts of the case, which the trial court can rely on to make its
own qualified immunity ruling.

On the facts of this case, special interrogatories
should have asked (1) whether Ms. Littrell resisted arrest before Officer
Franklin forcibly restrained her and (2) whether Officer Franklin knew
Ms. Littrell was injured when he continued to handcuff and forcibly place
her in the car. Specific findings on these questions of fact would have
enabled the district court to address the legal issue of qualified immunity
through reference to excessive force standards that are clearly established.

In this case, however,
the trial court relied on a precedent from another federal appeals court,
the Fifth Circuit, in submitting the qualified immunity question to the
jury. See Sikes v.
Gaytan, No. 99-50316, 218 F.3d 491, 493-94 (5th Cir. 2000). Because
the plaintiff did not object to either this practice or to the content
of the second interrogatory submitted to the jury. She also failed to offer
any alternate instructions. In the absence of plain error which threatens
the fairness or integrity of the judicial process, a party must raise specific
objections to the form or content of jury instructions in order to preserve
the issue for appeal, the court ruled.

The appeals court
found that it was not clear from the record that the plaintiff demonstrated
that submission of the qualified immunity issue to the jury "actually
affected the outcome of the proceedings," and that, regardless of
its impact on the outcome, it did not believe that the error was sufficiently
fundamental to threaten the fairness or integrity or public reputation
of the judicial proceeding.

Submission of the qualified immunity issue to
the jury was wholly consistent with the practice of the Fifth Circuit.
Although different from our own practice, we do not think the Fifth Circuit's
practice is fundamentally unfair or in any way threatens the integrity
of the judicial process. Importantly, the Supreme Court has not censured
the Fifth Circuit's practice. This is true even though there exists a split
among the circuits as to the proper apportionment of responsibility between
juries and judges in this context. Against this backdrop, we do not find
that reliance on the practice of the Fifth Circuit resulted in the sort
of error that we may properly characterize as plain error.

The grant of qualified
immunity was therefore upheld.

Littrell v. Franklin,
No. 03-2534, 388 F.3d 578 (8th Cir. 2004).

» Click
here
to read the text of the court's decision on the Internet.[PDF]

Officer was entitled to qualified immunity
for arresting fifteen-year-old's father for allegedly furnishing him with
a controlled substance. Officer's consultation with local prosecutor prior
to making the arrest was one factor to be considered in that determination.

Maine police received
information that a fifteen-year-old boy, previously arrested for alleged
involvement in a series of snowmobile thefts, had sold drugs to high school
students. An informant, fitted with an electronic listening device, drove
to the family's home, and purchased four tablets of Roxicodone, a non-time-released
version of Oxycontin,
from the boy. An officer, listening to the conversation by transmitter,
overheard the boy tell the informant that his father had recently returned
from a "drug run" to North Carolina and that he could have his
father obtain "an eighth of marijuana" for future purchase.

Based on this information,
an officer obtained a warrant to search the home for scheduled drugs, drug
paraphernalia, and other items related to furnishing or trafficking in
drugs. Officers found two Roxicodone tablets and drug paraphernalia in
the son's bedroom. In the home's kitchen, they found a triple-beam scale
with marijuana residue, a bottle containing sixty-five Roxicodone tablets,
and an empty Roxicodone bottle. The father told the officers that the Roxicodone
had been legally prescribed for his back condition, that he never had provided
pills to his son or to anyone else (but, rather, had kept them on his person
at all times except while sleeping), and that he had called his pharmacist
because he was concerned that a few of his pills were missing.

The officer consulted
with an assistant district attorney, who agreed with him that the facts
provided probable cause to arrest the father. The officer then made the
arrest for aggravated furnishing of a scheduled drug. Charges were later
dropped against the father.

The father filed
a federal civil rights lawsuit claiming that the arrest violated his Fourth
Amendment rights. A federal appeals court has upheld qualified immunity
for the defendant officer.

The appeals court
noted that the officer had reason to believe from the son's comments that
the father was likely involved in furnishing marijuana to his son and possibly
to others. The discovery of the triple-beam scale in the family kitchen
tended both to corroborate the teenager's remarks and to confirm the officer's
understanding. The officer also knew that the Roxicodone tablets found
during the search had been prescribed for the father and were, "by
his own admission," in his nearly exclusive control.

Additionally, the
officer had reason to doubt the father's claim that he was scrupulous in
guarding the pills, since the search disclosed two Roxicodone bottles (one
empty and one full) in the kitchen and two loose tables in his son's bedroom.
The officer's knowledge that the son had obtained and sold four other Roxicodone
tablets to the informant also supported probable cause. Under these circumstances,
the appeals court ruled, it was objectively reasonable for the officer
to infer that the father had furnished those pills to his minor son. While
the officer's judgment "may walk a thin line between probable cause
and mere suspicion," the court commented, "it cannot be shrugged
off as plainly incompetent."

The appeals court
also pointed out that "to cinch matters," the officer took the
precaution of reviewing the known facts with the local prosecutor before
making the arrest. It "simply cannot be said," on this record,
the court concluded, that probable cause was clearly lacking at the time
of the arrest, entitling the officer to qualified immunity.

The appeals
court agreed with the plaintiff that a "a wave of the prosecutor's
wand cannot magically transform an unreasonable probable cause determination
into a reasonable one." But a reviewing court should not "throw
out the baby with the bath water," but instead factor the fact of
the consultation of the advice obtained into the totality of the circumstances
considered in determining whether the officer is entitled to qualified
immunity.

It stands to reason that if an officer makes a
full presentation of the known facts to a competent prosecutor and receives
a green light, the officer would have stronger reason to believe that probable
cause existed. And as a matter of policy, it makes eminently good sense,
when time and circumstances permit, to encourage officers to obtain an
informed opinion before charging ahead and making an arrest in uncertain
circumstances. Although we acknowledge the possibility of collusion between
police and prosecutors, we do not believe that possibility warrants a general
rule foreclosing reliance on a prosecutor's advice.

In this case, the
court found, the advice that the officer received from the prosecutor was
of the kind that an objectively reasonable officer would be "free
to consider reliable." The two reviewed the available evidence "fully
and had a frank discussion about it," and there was nothing to suggest
that the prosecutor was acting in bad faith.

Officer was entitled to qualified immunity
for police dog's biting of woman who insisted on remaining in the middle
of a volatile situation when police and the dog entered her house to arrest
her son.

Several police officers
arrived at a woman's home in Michigan, seeking to arrest her son for failure
to report to his parole officer. During the "ensuing melee,"
a K-9 dog brought by one of the officers bit the woman. She filed a federal
civil rights lawsuit claiming that excessive force was used against her,
and the trial court granted the officers summary judgment on the basis
of qualified immunity.

The officers had
been told that the parolee, who had been reported as having been seen at
his mother's house, was a "runner" and might attempt to evade
arrest. Three of the officers went to the door, and the dog stood with
one of them, wearing a body harness and leash used for tracking. The woman
opened the back interior door and remained behind the locked screen door.
She informed her son, who was there, of the officers' presence, and began
opening the door, whereupon the three officers entered, along with the
dog.

The officers observed
that someone was in the basement, and ordered the individual to show his
hands, but to no avail. One of the officers alerted the dog, who was named
"Kojak," to begin barking. One of the officers then allegedly
pushed the woman in the back, causing her to stumble and move from the
second to the first step of the kitchen staircase. She subsequently claimed
that this was when the dog attacked her, biting her three times on her
leg. One of the officers then promptly restrained the dog by the collar.
The woman claimed that one of the officers then grabbed her by the neck,
threw her outside and made her lay face down on the cement sidewalk.

Two of the officers
stated that the woman had proceeded to jump on an officer's back in a "hysterical
effort" to get at another officer and the dog to "protect her
son," and yelled at them not to hurt her son. Following that, the
son allegedly yelled at the officers to leave his mother alone. It was
following this, that one of the officers pushed the woman, she lost her
footing, and she raised herself back up, whereupon the dog bit her in the
thigh area.

A federal appeals
court upheld summary judgment for the defendant officers. The court rejected
the argument that the plaintiff had been "seized" when one of
the officers "knowingly brought a dangerous animal," Kojak,
into the narrow entranceway of her home. A seizure within the meaning of
the Fourth Amendment,
the court noted, requires an "intentional acquisition of physical
control," not the mere "accidental effects" of otherwise
lawful conduct.

The appeals court,
while not disputing that trained police dogs can appear to be "dangerous,
threatening animals," pointed out that no federal appeals court has
held that a properly trained police dog is an instrument of deadly force.
And there was, in this case, no evidence that the dog Kojak was improperly
trained.

Even accepting the
plaintiff's version of events, there was nothing to suggest that that an
officer introduced the dog into her home intending to seize her or that
one actually seized her "through means intentionally applied."
The officer brought the dog into the home because he was unaware of the
son's precise whereabouts, and the court found that the circumstances "undoubtedly
justified" the dog's presence, since the son was a fugitive who had
been on the run for nearly a year. The dog was trained to track, and the
officer legitimately believed that the son might attempt to flee, and that
the dog's presence could curtail that possibility.

No officer commanded
the dog to bite the plaintiff. The dog perceived a threat when she stumbled
one step down the kitchen stairs into the dog's defensive perimeter, and
the officer handling the dog quickly restrained and refocused the dog once
he began biting the plaintiff. A reasonable jury could only conclude that
the dog's actions were a "spontaneous" response to the plaintiff's
threatening movement into the dog's defensive perimeter.

The officer who
allegedly pushed the woman, and subsequently placed her under arrest was
also found to be entitled to qualified immunity. He was confronted with
a "rapidly-evolving, highly-volatile situation," and the plaintiff's
insistence on remaining in the middle of that situation posed a risk to
herself, to her son, to the officers seeking to arrest her son, and to
the other individuals present, and interfered with the officers' efforts
to perform their duties.

U.S. Supreme Court: a warrantless arrest is
reasonable under the Fourth Amendment so long as the officer, based on
the facts known to him, has probable cause to believe a crime has been
committed. The crime justifying the arrest need not necessarily be "closely
related" to the offense actually cited as the reason for the arrest.

A Washington
State Patrol officer, believing that a motorist had been impersonating
a police officer because of his use of flashing headlights, pursued and
pulled over his vehicle. While questioning him at the scene, the officer's
supervisor discovered that the motorist was taping the conversation and
arrested him for violating the state's Privacy Act. This arrest was made
despite the motorist's citing of a state appeals court decision allegedly
allowing the tape recording of such roadside conversations with police.
The motorist was also ticketed for the flashing headlights.

Both charges were
subsequently dismissed. The motorist filed a federal civil rights lawsuit
claiming that his arrest violated the Fourth and Fourteenth Amendments.
A jury returned a verdict for the defendant officers after being instructed
that the plaintiff had to establish lack of probable cause to arrest, and
that taping police at a traffic stop was not a crime in the state. The
U.S. Court of Appeals for the Ninth Circuit reversed, Alford
v. Haner, #01-35141, 333 F.3d 972 (9th Cir. 2003) [PDF], ruling that
the officers could not have had probable cause to arrest, and rejecting
the argument that the arrest was still supported by probable cause because
the officers had grounds to arrest the motorist for impersonating an officer,
and obstructing an officer. The appeals court reasoned that those offenses
were not "closely related" to the charge the motorist was actually
arrested for--recording the conversation, and therefore could not be used
as a basis to justify the arrest. It denied the argument that the officers
were entitled to qualified immunity, for this reason.

A unanimous 8-Justice
U.S. Supreme Court (with Justice Rehnquist not participating in the decision),
ruled a warrantless arrest by a law officer is reasonable under the Fourth
Amendment if, given the facts known to the officer, there is probable cause
to believe that a crime has been or is being committed.

The Supreme Court
rejected the appeals court's additional limitation--that the offense establishing
probable cause must be "closely related" to, and based on the
same conduct as, the offense the arresting officer identifies at the time
of arrest. This, the Court commented, was inconsistent with prior precedent
holding that an arresting officer's state of mind (except for facts that
he knows) is irrelevant to probable cause, citing Whren
v. United States, No. 95-5841, 517 U. S. 806 (1996)

The Court further
reasoned that the "closely related offense" rule would also result
in "perverse" consequences, not eliminating sham arrests, but
encouraging officers to cease providing reasons for arrest, or to cite
"every class" of offense for which probable cause could conceivably
exist.

The arrestee also
claimed that the officers lacked probable cause to arrest him for obstructing
an officer or for impersonating an officer. Because the appeals court below
held that those offenses were legally irrelevant under the circumstances,
it did not decide that question. The U.S. Supreme Court stated that it
declined to engage "in this inquiry for the first time here,"
and therefore reversed the judgment of the Ninth Circuit and ordered further
proceedings on that question.

Devenpeck
v. Alford, No. 03-710, 2004 U.S. Lexis 8272.

» Click
here to read the
text of the Court's decision on the Internet.

Officer had probable cause to remove motorist
from his vehicle when he refused a lawful order to produce his driver's
license, and did not use excessive force in doing so when he could reasonably
believe that he was attempting to evade arrest and posed a possible danger
to pedestrians and others in the area.

A man attending
a country music concert in Wisconsin became involved in an altercation
with a county police captain as he attempted to exit the parking lot following
the event. He sued the captain and the county, claiming that he was illegally
seized and that the captain used excessive force in removing him from his
vehicle.

A federal appeals
court found that the officer had probable cause for the stop and that the
force used was not excessive.

The officer was
assisting in the directing of traffic leaving the event. The officer noticed
the plaintiff's SUV turning into the path of a compact car, and asked the
driver which way he was going. The driver allegedly replied that he was
going south, and that "you don't have to pound on my hood, you ass."
The officer then told the driver that he had not touched his vehicle to
make him angry, and the driver again allegedly called him an "ass"
and stated that he should not have touched his vehicle at all.

The officer believed,
because of the driver's "irrationally angry behavior," that he
might be under the influence of drugs or alcohol and asked for his driver's
license in order to determine whether his motor skills were impaired and
whether he could detect any smell of alcohol. The driver allegedly yelled,
"who are you to ask for my driver's license," and refused to
give it to the officer. The vehicle was then in motion and the officer
decided that it was a threat to other cars and pedestrians, ordering the
driver to stop.

When he did not
do so, he reached into the vehicle and attempted to put it in park. When
this did not work, he opened the door, grabbed the motorists left arm,
and again tried to stop the vehicle. The motorist subsequently admitted
at his deposition that he was attempting to drive away from the officer,
while in an earlier affidavit, he said that the vehicle was moving only
because his foot had slipped off the brake during the scuffle. It was uncontested
that the vehicle was in motion.

The motorist claimed
that he then voluntarily exited his vehicle and was cooperative, but that
the officer retained his hold on his arm, and jerked his wrist upward until
his wrist was touching his neck, causing injury to his rotator cuff. The
officer claimed that the motorist continued to swear and complain about
his vehicle being touched. He was told that he would be receiving a citation
in the mail for failure to obey an officer's signal.

The federal appeals
court found that, even taking the facts in the case in the light most favorable
to the motorist, the alleged conduct by the officer did not amount to a
constitutional violation. While probable cause is needed for a formal arrest,
an investigative stop only requires that the officer is able to "produce
articulable facts giving rise to a reasonable suspicion that a defendant
has been, is, or is about to be engaged in criminal activity."

The motorist was
seized when the officer grabbed his arm and attempted to physically remove
him from the vehicle. But this seizure was based on probable cause and
was not unconstitutional. The officer had an objectively reasonable belief
that the motorist had violated a Wisconsin law making it a misdemeanor
to knowingly resist or obstruct an officer performing his duty by disobeying
the lawful order to produce his driver's license.

The appeals court
also found that the officer did not use excessive force under the circumstances.
The motorist was "combative and irrationally angry," and the
fact that his vehicle was in motion as he argued with the officer could
lead a reasonable officer to believe that he was attempting to evade arrest
and was posing a danger to pedestrians and stopped traffic in the area.
A police officer's ability to make a stop or an arrest, the court commented,
"necessarily carries with it the right to use some degree of physical
coercion or threat thereof to effect it."

Prior dismissal of a lawsuit under the Federal
Tort Claims Act for the alleged intentional destruction of computer equipment
and data seized during the execution of a search warrant did not bar a
subsequent civil rights lawsuit against the federal agents involved in
the search.

Federal agents executed
a search warrant on premises which were the corporate headquarters of a
company, as well as the personal residence of the president and sole stockholder
of the company and his wife. The warrant authorized seizure of "all
property, contraband, instrumentalities, fruits[,] or evidence" of
violation of statutes prohibiting child pornography or sexual exploitation
of minors.

The agents seized
all computer equipment, software data, and hard disk drives located on
the premises, which included all of the company's business records, client
files and business, and technological trade secrets. Apparently, the company
president was the victim of identity theft, and no evidence of any violation
of the cited statutes was found in the materials seized, nor were any charges
filed against him or his wife. The items seized, or what was left of them,
were subsequently returned.

Four of the nine
computers returned were allegedly totally unusable. This loss resulted
in the termination of the company's business operations. Data on five of
the hard disk drives seized were so damaged that all stored data was lost,
and this included documents, records, accounts, files, and trade secrets.

The residents filed
a federal civil rights lawsuit against the U.S. government under the Federal
Tort Claims Act (FTCA), 28
U.S.C. Sec. 1346, claiming that the agents "intentionally caused"
total and permanent damage to the computer equipment, resulting in the
end of their business operations. The lawsuit was dismissed for lack of
subject matter jurisdiction, because of an exception in the FTCA for
"Any claim arising in respect of ... the detention of any goods, merchandise,
or other property by any officer of customs or excise or any other law
enforcement officer ...."

The plaintiffs then
filed a second lawsuit asserting a claim against the agents for violation
of their constitutional rights under the Fifth
Amendment, pursuant to Bivens
v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971). They sought damages in excess of $4.4 million. The defendants
moved for judgment on the pleadings, based on the rule found at 28
U.S.C. § 2676, which provides that "the judgment in an action
under [the FTCA] shall constitute a complete bar to any action by the claimant,
by reason of the same subject matter, against the employee of the Government
whose act or omission gave rise to the claim." The trial court rejected
this argument, finding that the plaintiff's "procedural error"
in proceeding under the FTCA did not preclude their pursuit of their substantive
rights under Bivens.

A federal appeals
court agreed. It found that the rule contained in Sec. 2676 of the FTCA
was intended to prevent dual recovery from both the government and its
employees, and to avoid the waste of government resources in defending
repetitive lawsuits.

The appeals court
also reasoned that an action brought under the FTCA and dismissed for lack
of subject matter jurisdiction because it falls within an exception to
the restricted waiver of sovereign immunity provided by the statute does
not result in a "judgment in an action brought under section 1346(b)
[the Federal Tort Claims Act]" as specified in 28 U.S.C. Sec. 2676,
since the action was not "properly brought under the FTCA in
the first place and is a nullity."

The plaintiffs could
therefore proceed with their federal civil rights claims against the agents.

Hallock v. Bonner,
No. 03-6221, 387 F.3d 147 (2nd Cir. 2004).

» Click
here
to read the text of the court's decision on the Internet.[PDF]

Officer who shot fleeing felon motorist in
the back was entitled to qualified immunity, U.S. Supreme Court holds,
when prior caselaw did not clearly establish that her conduct violated
his Fourth Amendment rights.

An officer learned
that a man was wanted on a felony no-bail warrant for drugs and other offenses,
and heard a report of a "ruckus" at his mother's house. The suspect
attempted to flee in a vehicle, getting into a Jeep and trying to start
it. The officer ran to the Jeep with her handgun drawn and ordered him
to stop. As the suspect fumbled with his keys, she hit the driver's side
window several times with her handgun and, on the third or fourth try,
broke the window. She had mace and a baton, but allegedly did not use them,
instead trying to grab the car keys.

Just after she broke
the window, the suspect succeeded in starting the Jeep. Either before he
pulled away, or just after he started to do so (the evidence being conflicting),
the officer shot him in the back. Because he did not stop, the officer
believed she had missed him, but she did not take a second shot, believing
the risk to be too great as he began to drive away and others being in
the potential line of fire. The driver subsequently pulled over and passed
out.

A federal appeals
court ruled that the officer who shot the suspect did not act reasonably
if there was no evidence that he posed a threat of serious harm to others
or was armed with a weapon, overturning a grant of qualified immunity to
the officer by the trial court. Haugen
v. Brosseau, #01-35954, 339 F.3d 857 (9th Cir. 2003). [PDF]

The U.S. Supreme
Court disagreed, and ruled that the officer was, indeed, entitled to qualified
immunity.

Qualified immunity shields an officer from suit
when she makes a decision that, even if constitutionally deficient, reasonably
misapprehends the law governing the circumstances she confronted. Because
the focus is on whether the officer had fair notice that her conduct was
unlawful, reasonableness is judged against the backdrop of the law at the
time of the conduct. If the law at that time did not clearly establish
that the officer's conduct would violate the Constitution, the officer
should not be subject to liability or, indeed, even the burdens of litigation.

The Supreme Court
noted that the parties had pointed to only a "handful of cases"
relevant to the issue of whether shooting a disturbed felon, set on avoiding
capture through vehicular flight, when persons in the immediate area are
at risk from that flight was reasonable.

In two of the cases,
the courts found no Fourth
Amendment violation when an officer shot a fleeing suspect who presented
a risk to others, including on the basis of the possibility that a speeding
vehicle being used to flee could endanger others or that the suspect had
proven that they would do almost anything to avoid capture. In a third
case, the court found summary judgment inappropriate on a Fourth Amendment
claim involving a fleeing suspect, ruling that the threat created by the
fleeing suspect's failure to brake when an officer suddenly stepped in
front of his just-started car was not a sufficiently grave threat to justify
the use of deadly force.

The Court
found that these three cases taken together "undoubtedly show that
this area is one in which the result depends very much on the facts of
each case," and that none of them "squarely governs the case
here," while suggesting that the officer's actions fell in the "hazy
border" between excessive and acceptable force.

Since it was not
"clearly established" that the officer's conduct violated the
Fourth Amendment, she was entitled to qualified immunity.

Brosseau v. Haugen,
No. 03-1261, 2004 U.S. Lexis 8275.

» Click
here to read
the text of the Court's decision on the Internet.

"Critic" of city officials did not
show that an investigation of him, and his subsequent arrest and prosecution
for alleged involvement in constitutionally unprotected flyers, accusing
city officials of "drug abuse, adultery, or pedophilia" were
in unconstitutional retaliation for his prior circulation of First Amendment-protected
flyers accusing the mayor and others of official misconduct.

A vocal critic of
public officials in the city of Richmond,
Kentucky expressed some of his criticisms in flyers that he distributed
that stated, among other things, that the mayor and other officials had
engaged in official misconduct, which city officials conceded were protected
speech under the First
Amendment. No criminal charges were ever filed with respect to these
flyers. Subsequently, a second series of flyers appeared across the city,
and this time accused city officials of "private immorality, such
as drug abuse, adultery, or pedophilia."

The "critic"
and two of his associates were indicted on charges stemming from their
alleged involvement in distributing these latter flyers, which were found
not to be constitutionally protected. While the two associates were found
guilty, the "critic" was ultimately acquitted. He subsequently
sued the city, the mayor, the police chief, and various police officers,
charging that he had been subjected to unconstitutional harassment and
retaliation by them on the basis of his distribution of the constitutionally-protected
flyers concerning official misconduct and corruption.

While these claims
were "quite vague and generalized," the complained of conduct
included the conducting of "poster patrols" searching for individuals
putting up posters, in which he was named as a suspect, patrols throughout
the subdivision in which he lived, interviews an Assistant Police Chief
conducted with his college professors in an effort to gain more information
about him, one officer's action in "forcibly searching" him and
threatening him with arrest as he entered City Hall, and the mayor's mentioning
of his name, among others, in listing persons who "we should never
have to be insulted or threatened by." Additionally, following his
filing of an ethics complaint over what he perceived to be improper conduct
by city officials, the city adopted an ordinance requiring a party who
files frivolous ethics complaints to pay the attorneys' fees of the accused
official. He claimed, and the police chief conceded, that the chief was
responsible for all of the police activity about which he complained. He
also claimed that the mayor personally ordered or authorized at least some
aspects of the police investigation.

The trial court
declined motions to dismiss the complaint, rejecting arguments that the
individual defendants were entitled to qualified immunity and that the
plaintiff had failed to allege a municipal policy or custom pursuant to
which the alleged harassment had been carried out. The defendants appealed.

The appeals court
found that the search of the plaintiff as he entered City Hall was, by
his own description, not a constitutional violation. There was no evidence
that it was motivated by retaliation for his prior distribution of the
constitutionally protected flyers. It was a search for weapons, and the
remarks about throwing "your ass in jail" were in response to
his question about what would happen if he refused to be searched. The
ensuing search lasted only a minute or two, and was merely a pat-down.
This did not rise to the level of adverse action capable of "deterring
a person of ordinary firmness from continuing to engage in the protected
conduct," and persons entering a government building "necessarily
encounter" a variety of security measures, including the possibility
of being searched. City Hall was on heightened security alert that day
because of an incident a few days earlier in which a projectile, thought
to be a bullet, had punctured a window in the mayor's office.

Similarly, the interviews
with the plaintiff's college professors were part of a legitimate criminal
investigation into the distribution of the illegal flyers, even if the
investigative file for the unprotected flyers referred to and contained
copies of his protected flyers. "It makes sense that a criminal investigation
into the distribution of illegal flyers might include references to other
flyers - even if legal - that may have come from the same source."

The appeals court
also found that the police chief's authorization of the poster patrols
and the patrols of the plaintiff's subdivision were reasonable, as they
were conducted as part of the investigation into the unprotected flyers,
not the protected flyers. The plaintiff argued that it was particularly
relevant that his subdivision, which police allegedly patrolled, was located
outside the city limits, but the appeals court attached "little significance"
to this fact in the absence of any evidence that police were not entitled
to patrol beyond the city limits.

Since none of the
police actions were found to rise to the level of a constitutional violation,
the mayor's alleged authorization of them could not be a basis for liability,
and her comment mentioning the plaintiff's name "does not constitute
an adverse action that is capable of the requisite chilling effect,"
merely indicated her views, conveying no threat, and would not have deterred
the plaintiff or anyone else from engaging in constitutionally-protected
speech.

Finally, the mayor
was entitled to absolute immunity with regard to her role--and vote--in
passing the ordinance concerning the filing of frivolous ethics complaints.
Absolute immunity extends to local mayors who are acting in official "legislative
capacity," and passing an ordinance is an example of an action taken
in official legislative capacity.

While the city would
not, ordinarily, be entitled to immediately appeal the denial of dismissal
of the claims against it, the appeals court found that the city's appeal
was "inextricably intertwined" with the individual defendants'
appeal, "because there can be no municipal liability under 42
U.S.C. Sec. 1983 for maintaining a policy of unconstitutionally retaliating
against individuals who exercise their First Amendment rights when no such
unconstitutional retaliation has actually occurred." Because of the
appeals court's finding that the plaintiff suffered no unconstitutional
retaliation, his claims against the city must also fail, the court ruled.

Policy which prohibited "animal rights"
demonstrator from protesting at a state-owned performance facility outside
of a designated "free expression zone" away from the building
entrance was unconstitutional on its face, and violated his free speech
rights.

An "animal
rights" advocate demonstrated each year at the San Francisco "Cow
Palace," a state-owned performance facility located just south
of the city, whenever the circus or the rodeo was playing there. The district
agricultural association, which governs the facility, adopted a "First
Amendment Expression Policy," which prohibited individuals from demonstrating
outside the facility, except in designated "free expression zones,"
none of which were near an entrance to the building.

The demonstrator
filed a federal civil rights lawsuit claiming that this policy violated
his First Amendment
rights (and similar provisions of the California state Constitution) because
the "free expression zones" did not allow demonstrators access
to the facility's patrons adequate to allow engaging in conversation or
handing out leaflets.

A federal
appeals court has agreed, and reversed the dismissal of the complaint,
finding that the policy in question was unconstitutional on its face.

The policy defined
"demonstration" as the individual or group display of signs,
picketing, leafleting, collection of signatures or marching, and any group
activity involving the communication of expression, either orally or by
conduct of views and/or grievances, and which has the effect and intent
or propensity to express that view or grievance to others. Excluded from
the policy's reach were one-on-one voluntary discussions, with the exception
of oral advocacy within 75 feet from any point along the front entrance
or in the fire zones, or individuals wearing small buttons less than 3-inches
in diameter, or "symbolic" clothing which does not include "pictures
or lettering." Demonstrating is only allowed within designated "free
expression zones."

The three such zones
created were on the perimeter of what was described as the "preferred
parking lot," located directly in front of the main doors of the arena.
Two of the zones were 10 by 20 feet, and the third was 16 by 18 feet. The
zones were between 200 and 265 feet away from the main entrance. Individuals
or groups desiring to demonstrate there are required to register with the
management, with registration granted on a first-come, first-served basis.

On one occasion,
the plaintiff was prohibited from demonstrating in the walkway to the entrance
of the area, and he claimed that, on the very same day, a radio station
representative was allowed to hand out leaflets advertising the radio station
directly in front of the arena entrance.

The appeals court
noted that under either the U.S. or California Constitutions, permissible
restrictions on expression in a public forum must be "content-neutral,
be narrowly tailored to serve an important government interest, and leave
open ample alternative channels for the communication of the message."

The appeals court
found that, as the public was generally free to come and go in the parking
lots and on the walkways around the Cow Palace, the area was a public forum.
There was also no evidence that protest activity was a threat to the facility's
financial success or more than "a mere annoyance" to patrons.

"Annoyance and inconvenience, however, are
a small price to pay for preservation of our most cherished right."
Id. at 1046 We hold that protest activity is not inherently incompatible
with the activity to which the parking lots and walkways outside the Cow
Palace are dedicated, and that those areas are therefore public fora for
purposes of California Liberty of Speech Clause analysis.

Despite this, the
defendant was entitled to enact reasonable time, place, or manner of speech
regulations if they are content-neutral, narrowly tailored to serve a significant
governmental interest, and they leave open "ample alternative channels"
for the communication of information. The appeals court agreed that the
association's interest in pedestrian and traffic safety, as well as in
preventing traffic congestion, are significant.

Regulating traffic
around an exhibit or performance facility is insufficient, however, to
restrict speech outside a public entertainment facility without showing
that the proposed communicative activity endangers those interests. The
court found that the association failed to meet a burden of proving that
demonstrators handing out leaflets and carrying signs on the parking lots
and walkways outside the facility would cause the congestion and danger
to safety it alleged. The court also noted that evidence showed that, other
than during the rodeo and circus, there were only one or two days a year
in which even a single demonstrator shows up at the Cow Palace, and "at
least one demonstrator" for only three or four days of the rodeo and
two or three days of the circus. The court found that the actual experience
at the facility "indicating how many protesters have shown up in the
past is pertinent to judging the likely impact of allowing communication
activity in the future."

The court found
that this record of a mere handful of protesters showing up made the significance
of the state interest in the congestion and safety issues questionable.
Evidence showing that radio stations have given out buttons or promotional
material on the walkway and that programs and concessions are often sold
outside the ticket office also brought this into question, since there
was no record of harm or safety concerns caused by such activity "in
the supposedly congested areas," which disputed the association's
claim that a demonstrator handing out leaflets would contribute to such
harm.

We do not mean to suggest, of course, that the
Association could not prevent demonstrations that do prevent patrons of
the Cow Palace from entering or leaving the facility, or that interfere
with drivers circling the lot for a parking space. Common sense tells us
that demonstrators walking in front of moving cars could present a safety
problem, as could demonstrators blocking patrons' paths. But ordinary traffic
regulation, including prohibiting demonstrators as well as others from
blocking cars or impeding pedestrians, responds to those concerns. The
undeniable need for traffic regulations, and for enforcement of those regulations,
does not demonstrate that there is a significant state interest in banning
the protesters entirely except in a few small zones.

Even if it were
assumed that there was sufficient support for the asserted interest in
congestion and traffic safety, however, the court found that the free expression
zones policy was not adequately "narrowly tailored" to serve
these interests. The court found that excluding communicative activity
from a large area "prevents far more speech than is necessary"
to achieve the goals of preventing congestion and ensuring pedestrian and
driver safety." Common sense and the evidence, the court found, indicated
that the entrance to the facility itself was a "bottleneck, prone
to extreme congestion," but that area was only 12 feet by 100 feet.
There was no evidence that all areas other than the three free expression
zones posed a similar risk of congestion and safety hazards.

Other more limited measures, such as prohibiting
protesters within a certain distance from the entrance, or limiting the
overall number of demonstrators in certain areas closer to the entrance,
or requiring that protesters stand a certain distance from each other,
are all measures that directly respond to the nature of congestion and
traffic safety issues in parking lots, the court commented. The present
policy, however, which relegates communication activity to three small,
"fairly peripheral areas" was not narrowly tailored to serve
the asserted interests.

The appeals
court concluded that the policy on its face unconstitutionally violated
free speech rights, so that the trial court erred in granting summary judgment
to the association, and also erred in denying the plaintiff's summary judgment
motion.

Kuba v. 1-A Agric.
Ass'n, No. 02-16989, 387 F.3d 850 (9th Cir. 2004).

» Click
here
to read the text of the court decision on the Internet.[PDF]

Arrestee did not present viable claims for
wrongful arrest or malicious prosecution when grand jury indicted him for
alleged sexual molestation of a child, and there was no showing that the
defendants misled the grand jury.

A young girl
told a county sheriff's deputy and other investigators that her grandfather
and uncle had molested her, and that two non-family members were also involved.
The deputy suspected that a local man with was acquainted with the girl's
grandfather was one of these men, and the girl subsequently identified
him during a photographic lineup as resembling the man in question. Additionally,
the deputy believed that several of the man's responses during an interview
were suspicious.

Based on this investigation,
county officials decided to prosecute the man and began by seeking a grand
jury indictment. The deputy filed an affidavit and testified before the
grand jury, which subsequently indicted the man on three counts of aggravated
sexual assault of a child. He was subsequently arrested. Before trial,
however, the girl recanted her allegations concerning him, and the county
dismissed the charges.

The arrestee sued
the deputy and the prosecutor, contending that they failed to conduct an
appropriate investigation. He argued that a more thorough investigation
would have shown that, due to impotence, he was unable to perform some
of the acts that the girl alleged were done to her, that he did not move
to Texas until approximately two years after the girl said that the man
in question began molesting her. He also claimed that the photographic
lineup was flawed and prejudicial because his photo was the only one in
the array with physical characteristics similar to the girl's description
of the man who allegedly molested her.

The plaintiff
asserted claims for unreasonable arrest, unreasonable detention, and malicious
prosecution under the Fourth and Fourteenth Amendments, and asserted claims
against the county for alleged failure to properly supervise and train
the deputy in conducting a reasonable investigation and in creating and
presenting photographic lineups. State law claims for false arrest, false
imprisonment, malicious prosecution, and negligent investigation were also
asserted.

The trial
judge granted summary judgment for the defendants on all claims. He held
that the plaintiff failed to create a genuine issue of fact concerning
whether the defendants withheld information from the grand jury, and that
the grand jury's finding of probable cause precluded the Fourth Amendment
claims regarding the plaintiff's arrest and imprisonment, as well as the
malicious prosecution claim. The judge further stated that even if the
indictment had not been returned, the arrestee's claims would still fail
because he did not show that deputy and prosecutor should be denied qualified
immunity for acting unreasonably in determining that probable cause existed.

The trial judge
also found no authority for a constitutional claim for "unreasonable
investigation," and that there was no evidence that the county had
a policy or custom encouraging the use of unconstitutional photographic
lineups. The failure to establish a genuine issue of fact on the constitutional
claims, the judge stated, "doomed" his state-law claims, and,
in the alternative, the deputy and prosecutor were entitled to official
immunity under Texas state law.

Upholding this result
on appeal, a federal appeals court rejected the argument that the trial
court erred in refusing the plaintiff's attempt to conduct depositions
of the grand jurors. He argued that, since no record existed of the grand
jury's proceedings, he needed to depose its members to prove that the deputy
and prosecutor withheld information from it, in order to prove his malicious
prosecution and civil rights claims.

Under both federal
and state law, grand jury proceedings are generally secret. Grand jury
material may, however, be discovered when there is a "particularized
need" for the material, such as when the material is needed to avoid
a possible injustice in another judicial proceeding and the need for disclosure
is greater than the need for continued secrecy. "The secrecy of the
grand jury proceedings is not something that is intruded into except in
rare circumstances."

The appeals court
found that the plaintiff failed to show such a "particularized need"
for compelling the disclosure of grand jury information, much less deposing
the grand jury members, as he did not put forward any evidence whatsoever
that the deputy or prosecutor withheld information from the grand jury.
The deputy had testified under oath that she presented all relevant information
in her possession--both incriminating and exculpatory--to the grand jury,
and this was confirmed by the prosecutor. Indeed, the court noted, for
the most part, the plaintiff had not claimed that the deputy even possessed
exculpatory information, but rather that she would have learned of exculpatory
details if she had conducted a reasonable investigation.

Accordingly, the
trial judge had no reason to believe that any useful information would
have been uncovered if the plaintiff were allowed to depose the grand jurors,
so a "fishing expedition" in the grand jury proceedings was not
warranted.

The appeals court
found that, on the basis of the grand jury indictment, and the failure
to show that anything tainted the grand jury proceeding, the trial court
properly granted summary judgment on the plaintiff's federal and state
claims arising out of his arrest and prosecution. It also upheld the finding
that there is no legal basis for a federal civil rights claim for "unreasonable
investigation," and that there was no showing of county policies of
inadequate supervision or training.

Search warrant issued on the basis of an affidavit
which did not establish a link between criminal activity and the residence
to be searched or even that the address was the residence of the suspect
was so lacking in probable cause as to make reliance on it objectively
unreasonable.

A woman was arrested
and had her home searched in Kentucky incident to a charge of selling a
marijuana cigarette to a teenager. Charges against her were subsequently
dropped for insufficient evidence. She sued, claiming that her constitutional
rights were violated when police searched her residence and arrested her
pursuant to a defective warrant obtained through a faulty affidavit.

A federal appeals
court reversed summary judgment for the defendant police chief and a defendant
officer because the search warrant used in the case did not establish any
link between the place to be searched and any criminal activity and therefore
lacked probable cause.

A security officer
at a local high school had informed the city police department that three
of its students had skipped school and smoked marijuana. The boys told
police that one of them had purchased the marijuana cigarette at an apartment
at a nearby housing project occupied by a woman named Lisa.

A police officer
and the police chief allegedly drove to the housing project with that boy,
who pointed out the woman's residence. The officer then prepared an affidavit
for the search of the woman's home and one for an arrest warrant. The warrants
were issued and were executed by the officer and police chief, who found
no drugs, but did find what they termed drug paraphernalia, including rolling
papers and plastic baggies. (The arrestee claimed that the baggies were
for her son's baseball and basketball cards, and that the rolling papers
belonged to her deceased father, who used to smoke homemade tobacco cigarettes.

The minor later
retracted his statement and said he had lied about buying the marijuana
from the woman, making up the earlier allegations about her. Two years
later, the minor told the plaintiff that he had brought the drugs from
a friend who lived in the same housing project as the plaintiff, and that
the false statements about the plaintiff were "pushed upon" him
during questioning by the police officer.

The affidavit for
the search warrant of the plaintiff's residence stated that the officer
had received information from a male juvenile "that Lisa Mills had
sole the male juvenile a marijuana cigarette for five dollars," and
that the officer conducted "the following independent investigation,"
that "on the 1st day of March a male juvenile gave a signed written
statement to officer Broughton stating that he had purchased a marijuana
cigarette for five dollars from Lisa Mills." The unsworn statement
of the male juvenile was not attached to the affidavit, and nothing in
the affidavit was stated about why the residence was being searched.

The appeals court
noted that the affidavit did not mention that the juvenile was alleged
to have purchased the marijuana at the plaintiff's residence. The underlying
affidavit "neither connects the searched residence to any illegal
activity nor states that a person engaging in illegal activity away from
the residence lives at the searched residence." It also did not indicate
that the officer or the police chief performed any investigation to determine
whether the plaintiff lived at the address.

Although the officers claim that they took Cox
[the minor] in a car and he identified 801 North Allison Avenue [the plaintiff's
address] as the residence from where he purchased the drugs, there is no
indication that this knowledge was passed on to the magistrate. The officers'
independent knowledge, without some explanation in the affidavit, is insufficient
to allow the magistrate to find probable cause that drugs would be found
at 801 North Allison Avenue. Simply put, the affidavit does not provide
the required nexus between the place to be searched and Lisa Mills.

Under these circumstances,
the warrant was so lacking in "indicia of probable cause," that
it was not objectively reasonable for the defendants to rely upon it. They
had presented absolutely no information in the affidavit indicating that
the place to be searched was connected to the suspect. The appeals court
reinstated the plaintiff's claims and ordered further proceedings.

Officers did not exceed the scope of a search
warrant for evidence of drug crime by seizing photographs, personal papers,
jewelry, doorknobs and locks, when the warrant authorized seizure of "any
other instruments of the crime."

Missouri police
officers executed a search warrant at a woman's house, where her son and
her cousin also lived. The warrant authorized a search for "crack
cocaine, marijuana, heroin, weapons, U.S. currency, drug transaction records
and any other instruments of the crime." The officers allegedly broke
entry doors and locks on interior doors, damaged drywall and furniture,
and seized a firearm, doorknobs and locks, photographs, personal papers,
and jewelry, and failed to provide the residents with a copy of the search
warrant or an itemized receipt for the seized property.

The three individuals
were never charged with any crime, and filed a federal civil rights lawsuit
challenging the issuance and execution of the search warrant. A federal
appeals court found that the defendants were entitled to qualified immunity
because the warrant was supported by probable cause and that the officers
had not exceeded the scope of the warrant. It also ruled that the officers'
alleged violation of requirements that they provide the plaintiffs with
a copy of the search warrant and an itemized receipt for the seized property
did not violate clearly established constitutional law, so that they were
also entitled to qualified immunity on that claim.

The appeals court
rejected the argument that the officers exceeded the scope of the warrant,
as the warrant authorized the seizure of "other instruments"
of drug transactions. The officers reasonably could have believed that
the items seized were of such an incriminating nature as to constitute
evidence of criminal activity. The personal papers could have been drug
records, the photographs could have depicted criminal activity, the jewelry
could have been the fruits of a drug transaction, and the door locks and
doorknobs could have carried fingerprints.

Dearmon v. Burgess,
No. 01-3096, 388 F.3d 609 (8th Cir. 2004).

» Click
here
to read the text of the court's decision on the Internet.[PDF]

Defendant state
troopers were not entitled to summary judgment on excessive force claim
merely because neither suspect nor his father, also present at the incident,
could identify which of the two of them allegedly stomped on the suspect's
ankle. The suspect was handcuffed and pinned face down at the time, and
both he and his father had been pepper sprayed at the time. If one of the
troopers did, in fact, stomp on the suspect's ankle while he was prone
on the ground in handcuffs, he was not entitled to qualified immunity.
Williams v. Atkins, No.
00 CIV. 8257(SCR), 333 F. Supp. 2d 209 (S.D.N.Y. 2004).

Defamation

Business owners
who claimed that their business reputation and good will in the community
were damaged by defamatory statements allegedly made by city's mayor about
the physical condition of their business premises could not recover damages
for violation of their civil rights. Defamatory statements and the alleged
damages, standing alone, were not sufficient to constitute a "state
imposed burden" sufficient to support a federal civil rights claim.
Sadallah
v. City of Utica, No. 03-9055, 383 F.3d 34 (2nd Cir. 2004). [PDF]

Defenses: Bankruptcy

A couple who asserted,
in filing a bankruptcy proceeding, that they had no assets and no "contingent
and unliquidated claims" of any nature, could not, after this assertion
was accepted as true by the bankruptcy court, subsequently file a federal
civil rights lawsuit less than a month later, asserting claims against
a town and its police chief for an alleged pattern of "egregious conduct,"
including harassment, intimidation and threats towards the couple and their
family, and an incident in which the wife was allegedly sexually assaulted
by another officer employed by the town. Their assertion in the bankruptcy
proceeding that they had no unsatisfied claims was inconsistent with their
assertion of federal civil rights claims for conduct that pre-dated the
bankruptcy. Plaintiffs were therefore "judicially estopped" from
their assertion of a contrary position--that they had unsatisfied federal
civil rights claims--in a subsequent proceeding. Howell v. Town of Leyden,
No. CIV.A 02-30135-MAP,
335 F. Supp. 2d 248 (D. Mass. 2004).

Defenses: Collateral Estoppel

Estate of man shot
and killed by police was barred, by the doctrine of collateral estoppel,
from relitigating the issue of whether the force used by the officers was
excessive. Federal court had previously found that the officers acted in
an objectively reasonable fashion in shooting and killing the man, a motorist,
who had rammed his vehicle into an officer's vehicle and then continued
to push the officer's vehicle backward. This conclusion in the federal
case barred the estate from pursuing state law claims for assault and battery,
negligence, and intentional infliction of emotional distress, as liability
for such claims would be inconsistent with the resolution of the federal
lawsuit. Vanvorous
v. Burmeister, No. 248450, 687 N.W.2d 132 (Mich. App. 2004). [PDF]

Defenses: Sovereign Immunity

Alabama deputy sheriff
was entitled to sovereign immunity under state law against liability for
injuries suffered by motorist his vehicle collided with while he was working
within the "line and scope of his employment," as conceded by
the motorist. The motorist claimed that the deputy had negligently or wantonly
sped through an intersection without utilizing his blue overhead lights
and his audible siren, but under Alabama law, the deputy was entitled to
sovereign immunity, now called State immunity, even under these circumstances,
so long as he was acting in pursuit of his official duty. Ex
parte McWhorter (In re McCarley v. McWhorter), 1021638, 880 So. 2d
1116 (Ala. 2003).

Defenses: Statute of Limitations

Statute of limitations
was tolled (extended) during the time that court ordered mediation of the
case was attempted. Plaintiff injured in a traffic accident with a county
deputy sheriff could therefore pursue his personal injury claim even though
the five-year statute of limitations had passed since the accident. Gonzalez
v. County of Los Angeles, No. B168867, 19 Cal. Rptr. 3d 381 (Cal. App.
2nd Dist. 2004). [PDF]

Expungement

Statute which permitted
expungement and destruction of arrest records for misdemeanors but not
for felonies did not violate equal protection since the classification
was rationally related to legitimate governmental interests. The retention
of felony arrest records, the court noted, is useful in uncovering criminal
conduct, in setting bond, and in facilitating the work of correctional
institutions. State
v. Expunged Record No. 249,044, No. 2003-KA-1940, 881 So. 2d 104 (La.
2004). [PDF]

False Arrest/Imprisonment: No Warrant

Officers had probable
cause to arrest a parent for trespass after a school official told them
he had asked the parent to leave the school premises and that the request
had been ignored, regardless of whether the parent had actually been told
to leave. Arum v. Miller, No.
00-CV-7476 (DRH)(ETB), 331 F. Supp. 2d 99 (E.D.N.Y. 2004).

Officers who failed
to provide evidence of what they were told about airline passenger's behavior
aboard plane before they removed her and took her to a psychiatric hospital
were not entitled to qualified immunity in her federal civil rights lawsuit
asserting that they violated her right to be free from an unreasonable
seizure, since the court could not determine, in the absence of such evidence,
whether the officers acted reasonably at the time in seizing her. Turturro
v. Continental Airlines, No.
00 Civ. 0637(PKC), 334 F. Supp. 2d 383 (S.D.N.Y. 2004).

Officer had probable
cause to arrest motorist who was driving vehicle for fleeing or attempting
to elude him when she admitted that she had seen police vehicles pursuing
her with lights flashing and heard their sirens and then told her husband,
who was sought on suspicion of having earlier violated a motorcycle law,
that she was just going to "go ahead and drive home" because
she was so close to it. Wright
v. City of St. Francis, Kansas, No. 02-3337, 95 Fed. Appx. 916 (10th
Cir. 2004).

Plaintiff in federal
civil rights lawsuit against police officials could not show that he suffered
a "seizure" for Fourth
Amendment purposes when he was issued tickets to appear in court on
charges for disorderly conduct and stalking. Charges against him were subsequently
dropped, and there was no evidence that he was ever actually required to
appear in court and answer the charges. Federal appeals court also finds
that plaintiff failed to show that officers lacked probable cause to issue
him the tickets. Prose v. Wendover, No.
02-1950, 96 Fed. Appx. 358 (6th Cir. 2004).

Firearms Related: Intentional Use

Officers acted in
an objectively reasonable manner in shooting and killing a man encountered
in the woods armed with two knives who repeatedly refused to drop them
in response to the officers' orders, and whose actions indicated that he
was prepared to use the knives against them. Huggins
v. Weider, No. 03-2333, 105 Fed. Appx. 503 (4th Cir. 2004). [PDF]

Jury verdict in
favor of police officer and city upheld in case where officer shot and
killed a man who approached him with a knife in hand when he responded
to a report of a dispute. Where the jury returned a general verdict in
favor of the defendants, and was not polled by special interrogatories,
the appeals court could not determine the basis on which the jury found
for the defendants and had to presume that the jury "found every issue
in favor of the defendants." The plaintiff therefore failed to provide
a record on which reversible error could be found. Morales
v. Moore, No. 24286, 855 A.2d 1041 (Conn. App. 2004). [PDF]

First Amendment

Police department's
use of officers mounted on horses to control crowd of demonstrators protesting
an appearance by President Bush to the city was not unreasonable. The use
of mounted officers, by itself, did not prevent demonstrators from exercising
their First Amendment right to free speech and assembly. Plaintiffs were
not entitled to an injunction against future use of mounted officers in
similar circumstances in the absence of evidence that protester's future
speech would be prevented on the basis of its viewpoint or content. Democracy
Coalition v. City of Austin, No. 03-03-00235-CV, 141 S.W.3d 282 (Tex.
App. 2004).

Negligence: Vehicle Related

Officer was entitled
to official immunity under Texas law from liability for injuries suffered
by motorist whose vehicle struck officer's car as the officer drove around
other cars stopped at an intersection during his response to a domestic
violence call. The officer was acting in good faith and within the scope
of his duties. His actions were reasonable in light of a report that the
suspect was threatening his wife or girlfriend and was going to shoot her.
Johnson
v. Campbell, No. 06-04-00016-CV, 142 S.W.2d 592 (Tex. App. 2004).

Procedural: Jury Selection and Jury Trial
Right

Under Louisiana
state law, there is no right to a jury trial in any lawsuit for injury
to person or property against the state, a state agency, officer, or employee,
or a political subdivision of the state or its employees acting in the
discharge of his officials duties or within the course and scope of his
employment. A jury trial was therefore not available on claims by the parents
of a son shot and killed by an off-duty police officer, based on a determination
that the officer acted in the course and scope of his employment or in
discharging his official duties. Robertson v. Hessler, No. 2003-C-1060,
881 So.2d 116 (La. App. 2004).

Property

Arrestees' claim
that city had a policy of issuing incomplete, false, and misleading receipts
for property taken for inventory purposes from them, and that this was
intended to prevent or delay the return of non-forfeitable property could
be pursued in federal court, since the deprivations allegedly did not stem
from random and unauthorized acts of city employees. Plaintiffs were not
required to first exhaust all state law remedies before pursuing procedural
due process claims in court. Their claims, however, could not be pursued
under the Fourth
Amendment, since a Fourteenth
Amendment due process claim provided an adequate avenue to seek redress.
The federal court also found that property owners cannot state a claim
under the Fifth
Amendment for the taking of private property for a public use without
just compensation before pursuing available state procedures for seeking
compensation. Gates v. Towery, No.
04C2155, 331 F. Supp. 2d 666 (N.D. Ill. 2004).

Public Protection: Crime Victims

County could not
be held liable for death of murder victim allegedly killed by detainee
who removed an electronic home monitoring restraint and left home detention
before committing the crime. The county and its agencies had no "special
duty" to protect the victim from the crime, and an exception to statutory
immunity for injury and death that occurs within the grounds of buildings
used in performance of public functions did not apply. Kennerly
v. Montgomery Cty. Bd. of Commissioners, 814 N.E.2d 1252 (Ohio App.
2d Dist. 2004). [PDF]

Search and Seizure: Home/Business

Officers were entitled
to qualified immunity on claims that they unlawfully seized residents of
apartment downstairs from residence of suspect when they surrounded and
entered the common areas of a duplex building looking for the suspect.
Defendants allegedly pointed their weapons at downstairs residents when
they did not obey commands to go back inside or stay in their apartment.
It is well established, federal trial court notes, that it is reasonable
for an officer to temporarily display force or restrain a person "until
that person's relationship to the suspect and possible reaction to the
situation can be ascertained." In this case, the officers were attempting
to locate and arrest a potentially armed suspect believed to be in the
same building as the plaintiffs, so that their conduct did not rise to
the level of a Fourth
Amendment violation. Reeves v. Churchich, No.
2:02 CV 0551 DAK, 331 F. Supp. 2d 1347 (D. Utah 2004).

Homeowner could
pursue her federal civil rights claim that officers unlawfully entered
her home to attempt to execute an arrest warrant for a non-resident suspected
of being present there. Federal appeals court finds that there were genuine
issues of fact as to whether the officers deliberately entered the home
without consent, a search warrant, or exigent circumstances, in violation
of the Fourth Amendment. Genuine issues also found concerning whether officers
were or were not trained to attempt to get consent before entering into
third-party residences to carry out arrests pursuant to arrest warrants.
Maddux
v. Officer One, No. 01-20881, 90 Fed. Appx. 754 (5th Cir. 2004). [PDF]

Business owner failed
to show that officers alleged violation of his reasonable expectation of
privacy in making a warrantless entry into garage on the premises in search
of an allegedly stolen vehicle was based on the police department's policy
or custom, so that the municipality could not be held liable. Binder
v. Redforce Township Police Department, No.
02-2184, 93 Fed. Appx. 701 (6th Cir. 2004).

Officer was entitled
to qualified immunity for his search of a mobile home he was sent to secure
when he had been told that minor found dead there may have been a victim
of sexual abuse and also that a search warrant for the premises had been
signed. Myers
v. Medical Center of Delaware, Inc., No. 03-2373, 105 Fed. Appx. 404
(3rd Cir. 2004). [PDF]

Search and Seizure: Search Warrants

Occupants of a home
mistakenly identified in a search warrant and subjected to a no-knock search
by members of a Special Weapons and Tactics (SWAT) team presented an arguable
issue as to whether the city's policies or lack of policies concerning
the issuance of no-knock search warrants caused a violation of their Fourth
Amendment rights. Because of the "hyper-intrusive" nature
of such searches, the court comments, the government should show more than
the standard requirement of probable cause to obtain such a warrant. At
the same time, the court rejected the argument that the city was required
to demand that the officer in charge of an investigation personally provide
visual verification of the address in a search warrant, finding that a
policy of allowing such verification by other officers was reasonable.
Solis v. City of Columbus, No.
2:02-CV-788, 319 F. Supp. 2d 797 (S.D. Ohio 2004).

Search and Seizure: Vehicle

It was clearly established
prior to August of 1999 that a traffic stop of a vehicle was not permitted
without some reasonable and articulable suspicion of criminal activity,
so that officers were not entitled to qualified immunity on a claim that
they stopped a vehicle merely because it was observed at an "odd hour"
driving through a "high crime" area in violation of the Fourth
Amendment. Holeman v. City of New London, No.
3:00CV1608 (DJS), 330 F. Supp. 2d 99 (D. Conn. 2004).

Towing

Vehicle towing company
could not recover damages under Illinois state law against city and its
mayor for their alleged request to the owner of a private parking lot to
cease doing business with them and switch to a local towing company. The
alleged action by the mayor was a "discretionary act" for which
immunity was available under the Local Governmental and Governmental Employees
Tort Immunity Act, 745
ILCS 10/1-101 et seq.Kevin's
Towing, Inc. v. Thomas, No. 2-03-1118, 814 N.E.2d 1003 (Ill. App. 2nd
Dist. 2004).

Article: "Expert
Testimony and Risk Assessment in Stalking Cases," by Eugene Rugala,
James McNamara, and George Wattendorf, 73
FBI Law Enforcement Bulletin No. 11, pgs. 8-18.(November 2004).
[PDF] "The FBI's National Center for the Analysis of Violent Crime
represents a valuable resource pertaining to stalking cases." Also
available in .html
format.

Publications:
COPS Gangs Toolkit. The COPS Gangs Toolkit, consists of five
publications, and provides details of community policing solutions to youth
crime and school violence. The topics covered are: Addressing School-Related
Crime and Disorder, Bullying in Schools, Disorderly Youth in Public Places,
Graffiti, Gun Violence Among Serious Offenders, as well as a Parents Quick
Reference Card. Each publication can be downloaded
in .PDF format, or ordered from the U.S. Department of Justice Response
Center at 800.421.6770.

Publication:
Law Enforcement
Intelligence: A Guide for State, Local, and Tribal Law Enforcement
Agencies, by Dr. David Carter, Michigan State University. Funded by
COPS (Community Oriented
Policing Services). "Dr. Carter's guide promises to help law enforcement
agencies develop or enhance their intelligence capacity and enable them
to be instrumental in fighting terrorism and other crimes while preserving
hard-won community policing relationships." Downloadable executive
summary and 12 downloadable chapters, as well as appendices. (November
23, 2004). [PDF]

Statistics:Indicators of School Crime and Safety, 2004 Presents data on crime
at school from the perspectives of students, teachers, principals, and
the general population. A joint effort by the Bureau of Justice Statistics
and National Center for Education Statistics, this annual report examines
crime occurring in school as well as on the way to and from school. It
provides the most current detailed statistical information to inform the
Nation on the nature of crime in schools. Information was gathered from
an array of sources including: - National Crime Victimization Survey (1992-2002)
- School Crime Supplement to the National Crime Victimization Survey (1995,
1999, and 2001) - Youth Risk Behavior Survey (1993, 1995, 1997, 1999, 2001,
and 2003) - School Survey on Crime and Safety (2000) - School and Staffing
Survey (1993-94 and 1999-2000). Highlights include the following: Students
age 12-18 were victims of about 309,000 serious violent crimes away from
school, compared with about 88,000 at school. Between 1993 and 2003, the
percentage of students in grades 9-12 who reported being in a fight anywhere
declined from 42 percent to 33 percent. In 2003, 5 percent of students
ages 12-18 reported being victims of nonfatal crimes, 4 percent reported
being victims of theft, and 1 percent reported being victims of violent
incidents. (November 2004) NCJ 205290 Press
releaseASCII
file (34K) Acrobat
file (906K)

Statistics:
Tort Trials and Verdicts in Large Counties, 2001 Presents findings
about tort cases disposed of by jury and bench trial in general jurisdiction
courts in the Nation's 75 largest counties during 2001. Information from
the Civil Justice Survey of State Courts is analyzed about types of tort
cases and litigants, type of trial, plaintiff winners, compensatory and
punitive monetary damages awarded to plaintiff winners, and case processing
time. Analyses are presented describing trends in tort jury trials. Information
on plaintiff and defendant post verdict activity at the trial court and
appellate levels are also described. Highlights include the following:
Plaintiffs won in 52% of tort trials in 2001. The 7,218 tort jury trials
disposed of in 2001 represents a 23% decline from 9,431 tort jury trials
disposed of in these counties in 1992. Litigants filed notice of appeal
to a State appellate court in 13% of tort trials disposed of in 2001. (November
2004). NCJ 206240 Acrobat
file (543K) | ASCII
file (34K) | Spreadsheets
(zip format 37K)